There are many laws in places that disallow certain types of people from residing in certain places. For example registered sex offenders are often prohibited from living a certain distance from schools and parks. That seems to be a valid exercise of criminal penalties, however I’m not sure if these trigger ex post facto prohibitions.
My question is more around land use. Could local governments ban folks that meet certain undesirable but not discriminatory criteria?
In home mental health facility?
Group home for drug rehabilitation?
County funded parolee housing?
If a local government were to ban outright these types of activities via their land use restrictions in zoning, what theory of legal liability could accrue if there was a challenge?
I mean, in general in terms of zoning. I imagine things like fair housing act, and other protections exist, but I’m not sure the extent of those rules.
IANAL, but I recall my mom’s town having a debate about allowing a low income senior housing complex in the town. I can’t remember how it turned out, but they had town meetings on it. IIRC, they were looking at the zoning of the property.
Then there was that town in Idaho (?) where some white supremacists tried to buy up a bunch of land. IIRC, some existing residents tried to prevent them from doing so. Again I’m not sure how that turned out.
Ah! Here’s a story about it from 2007. They were looking at using zoning to possibly prevent the construction, and it appears the city had the legal authority to stop the projecy. The facility was eventually built there, though, so this case may not help answer your question.
There’s something brewing in the city next door to mine about a “sober house.” Some people who own a home in a residential neighborhood (not their current primary residence) want to make that house a sober house, renting it to 5 men at a time (who are in recovery).
There’s a lot of NIMBY going on but the basic question yet to be answered is - if you’re charging these men money, are you a business? The neighborhood isn’t zoned for business.
But, the neighborhood allows renting, so are you just renting? What is the difference between renting your house to 5 guys who want to rent a house and renting your house to 5 guys who happen to be in recovery.
So far, there’s no answer. It hasn’t been delved in to completely.
There are a lot of rules, constitutional and statutory, state and federal. Each of the hypos in your OP has its own set of potential litigation paths.
And there are lots of inconsistent outcomes across states and circuits. For the example you mentioned, sex offender residency, the courts are all over the place about whether ex post facto applies.
Answer: it depends on where you live. In my state, for example, municipalities used to be able to ‘zone out’ (arguably) objectionable land uses, such as: rehab residences, adult foster care facilities, and even family day care homes. The need for these types of uses in a community was/is widely recognized but many residents/voters cry out “Not In My Back Yard” (NIMBY) as soon as they were established. Nobody wants one next door but everyone acknowledges they’re needed……someplace else! Eventually, the State resolved the issue by taking the licensing and regulation of such facilities out of the municipality’s hands and into the State’s. Many states now have departments that deal specifically with administering the licensing and locational requirements. It’s not uncommon, for example, to impose restrictions such as maintaining certain separation distances (e.g. 1,000 feet in residentially zoned areas) between other licensed facilities so that high concentrations of these potentially objectionable uses don’t occur.
In Los Angeles it has been delved into. As mentioned, these things typically play out between city councils reacting to complaints and state law-makers trying to find a real solution. Los Angeles passed a law which says that a “sober living” house has to be essentially what you described above: rooms rented to individuals with separate leases. As you say, what else could they do? It’s just a house being rented out, with an informal agreement that drugs and alcohol are not allowed on the premises. (Evicting someone who violates that agreement is a whole different issue.)
Otherwise, according to Los Angeles code, it’s like a business, and needs to be a licensed facility (which requires some kind of nominal medical oversight and inspections). Moreover, once a facility is licensed, and if it has fewer than 6 people, California law protects it from discriminatory local law.
Additionally, if an addiction is treated as a disability–and it can be–then federal law sets in with the ADA. So providing that a facility is licensed by a state, and depending on how the state in question determines licensing, it becomes harder for cities to ban people simply because they are known to be in recovery.
I know that for homes that house six or fewer persons in some instances, they can’t be treated any different than regular single family homes in terms of setbacks, or other restrictions imposed on similarly situated homes. But I’m wondering if there are other approaches that can be taken, like
[ul]
[li]rules around parking requirements, [/li][li]maximum number of residents/guests, [/li][li]requiring on site staff, [/li][li]squarefoot ratios, [/li][li]requiring indoor/outdoor community space, [/li][li]requiring ADA compliance, [/li][li]restricting to certain multi-family zoned areas, [/li][li]distance from school or other places, [/li][li]distance from others similarly situated, [/li][li]disallowing leases or rentals entirely (require owner occupation), [/li][li]require use permit,[/li][li]require periodic use permit renewal, [/li][li]require code compliance update upon renewal, [/li][li]require insurance bond[/li][li]Increase time for application processing and review[/li][/ul]
Some local cities have been making waves about incoming parolees as a result of state prisons shifting prison population to local counties, as well as SCOTUS mandate to reduce overcrowded prison population. Some cities are trying to take steps to limit the impact, so I’m wondering what would be ways to do that that comply with the law.